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Home > Sturm College of Law > Denver Journal of International Law & Policy > Vol. 50 (2021-2022) > No. 2 (2022)

 

Abstract

This Comment examines the United States' failure to invoke universal jurisdiction, even when doing so would likely have net positive effects in the foreign policy sphere. Instead, when war criminals turn up in the United States, the government may charge them with immigration offenses relating to their failure to disclose information about their past. Unless the accused is a United States citizen or there is a nexus between their crimes and the United States, the government will not prosecute jus cogens offenses--offenses so egregious that all of humanity has a duty to prevent and prosecute them, like genocide--unless strict jurisdictional requirements are met. But for war criminals and the like, immigration-related convictions are not justice. Justice requires formal criminal charge, the severity of which accounts for the nature of the crimes committed. This Comment argues that the United States, as a world leader, should assume the burden of investigating and prosecuting those accused of jus cogens offenses. Specifically, Congress should enact legislation providing federal district courts with jurisdiction over jus cogens crimes that occur outside of the United States. This authority would enable the criminal prosecution of alleged crimes that occurred extraterritorially, without the need for a nexus between the crime and the United States. However, by limiting the subject matter to jus cogens offenses and imposing additional guiderails, the Act would mitigate concerns of legislative interference in the foreign policy realm. By carrying out these prosecutions, the United States would better satisfy its obligations towards the international community, solidify its position as a world leader and humanitarian, and communicate to the world that egregious offenses will not go unpunished, regardless of where they occur.

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